Home Office policy concerning children found to be unlawful

A High Court judgment in the case of SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin) has upheld the rights of children affected by immigration decisions.

The Home Office policy on Discretionary Leave to Remain, which was in force at the time the decisions in question were made, has been found to be unlawful as it failed to consider the welfare and best interests of the child before deciding the period of time for which leave to remain should be granted. The High Court recognised that successive grants of short periods of leave to remain can leave children in limbo and may, therefore, be contrary to their welfare.

The case concerned foreign national children who had been granted Discretionary Leave to Remain for three years under Article 8 European Convention on Human Rights. The children had asked for Indefinite Leave to Remain but had been refused. The challenge was to the refusal to grant Indefinite Leave to Remain.

Coram Children’s Legal Centre (CCLC) acted as interveners in this case. The purpose of CCLC’s intervention was not to represent the individual children affected by the decisions, but to assist the Court.

According to CCLC, the effect of this judgment is that the welfare and best interests of children must be considered before determining the length of leave to remain that they are granted.

The judgment requires the Secretary of State for the Home Department to amend the relevant discretionary leave policy to make it lawful. In the light of this judgment, CCLC is calling for the Home Office to review all policies to ensure that they are child-rights compliant. Policies must ensure that Home Office caseworkers treat the best interests of the child as a primary consideration in all their decisions affecting children.

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